PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1944
HASHMEL C. TURNER, JR.,
Plaintiff-Appellant,
v.
THE CITY COUNCIL OF THE CITY OF
FREDERICKSBURG, VIRGINIA; THOMAS
J. TOMZAK, in his official capacity
as Mayor of the City of Fredericksburg, Virginia,
Defendants-Appellees.
AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA FOUNDATION,
Amicus Supporting Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, Chief District Judge.
(3:06-cv-00023-JRS)
Argued: March 19, 2008
Decided: July 23, 2008
Before Sandra Day O’CONNOR, Associate Justice (Retired),
Supreme Court of the United States, sitting by designation, and
MOTZ and SHEDD, Circuit Judges.
Affirmed by published opinion. Associate Justice O’Connor wrote the
opinion, in which Judge Motz and Judge Shedd joined.
COUNSEL ARGUED: R. Johan Conrod, Jr., KAUFMAN & CANOLES, P.C.,
Norfolk, Virginia, for Appellant. Robert Martin Rolfe, HUNTON &
WILLIAMS, Richmond, Virginia, for Appellees.
ON BRIEF: J. Bradley Reaves, KAUFMAN & CANOLES, P.C., Norfolk, Virginia;
James J. Knicely, KNICELY & ASSOCIATES, P.C., Williamsburg,
Virginia, for Appellant. Maya M. Eckstein, Terence J. Rasmussen,
Thomas K. Johnstone, IV, HUNTON & WILLIAMS, Richmond, Virginia;
Elliot M. Mincberg, Judith E. Schaeffer, PEOPLE FOR THE
AMERICAN WAY FOUNDATION, Washington, D.C., for Appellees.
Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION
OF VIRGINIA FOUNDATION, INC., Richmond, Virginia, for
Amicus Supporting Appellees.
OPINION
O’CONNOR, Associate Justice (Retired):
Appellant Hashmel Turner claims that the Council for the City of
Fredericksburg, Virginia, violated his First Amendment rights when
it implemented a policy beginning in 2005 requiring that legislative
prayers be nondenominational. Because the prayers at issue here are
government speech, we hold that Fredericksburg’s prayer policy does
not violate Turner’s Free Speech and Free Exercise rights. Likewise,
the requirement that the prayers be nondenominational does not violate
the Establishment Clause.
KLINGENSCHMITT COMMENT: RIGHT AWAY JUSTICE O’CONNOR GETS IT WRONG. RELIGIOUS SPEECH IS NEVER GOVERNEMENT SPEECH, SINCE THE GOVERNMENT CANNOT PRAY. WHENEVER SOMEBODY PRAYS, THEY CEASE TO SPEAK FOR THE GOVERNMENT, AND SPEAK ONLY FOR THEMSELVES, DURING THE LENGTH OF THAT PRAYER.
TURNER WAS DENIED EQUAL OPPORTUNITY AND PUNISHED WITH EXCLUSION, ONLY BECAUSE HE PRAYED IN JESUS’ NAME. HE WAS CERTAINLY VIOLATED.
AND THE SUPREME COURT HAS ALREADY RULED IN 1991, LEE V. WEISMAN, THAT "The government may not establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds...The State's role did not end with the decision to include a prayer and with the choice of clergyman. Principal Lee provided Rabbi Gutterman with a copy of the ‘Guidelines for Civic Occasions’ and advised him that his prayers should be nonsectarian. Through these means, the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State's displeasure inthis regard. It is a cornerstone principle of our Establishment Clause jurisprudence that it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government, Engel v. Vitale, (1962), and that is what the school officials attempted to do."
O’CONNOR MUST DISAGREE WITH THE SUPREME COURT TO MAKE THIS RULING. (AND SHE ADMITS SHE DOES....READ ON....)
I.
The Council of the City of Fredericksburg, Virginia ("the Council")
begins every meeting with a Call to Order, which consists of an opening
prayer offered by one of the Council’s elected members followed
by the Pledge of Allegiance. Only Council members are allowed to
offer the opening prayer, and the Council members rotate the Call to
Order duty. Until 2005, members of the Council were allowed to offer
denominational prayers.
2 TURNER v. CITY COUNCIL OF FREDERICKSBURG
Turner was first elected to the Council in 2002. He is an ordained
minister and a part-time pastor of the First Baptist Church of Love.
Turner’s religious beliefs require him to close his prayers in the name
of Jesus Christ. Turner’s prayers on behalf of the Council reflected
this practice.
In 2005, the American Civil Liberties Union threatened to file a
lawsuit if the Council’s practice of opening with sectarian prayers
continued. The City Attorney examined the relevant case law and
concluded that the safest course of action was to continue offering
prayers, but to offer nondenominational prayers which did not invoke
the name of Jesus Christ. The Council adopted their attorney’s suggestion
and promulgated a prayer policy on November 8, 2005. Turner
abstained from voting in that decision.
On November 22, 2005, Turner’s name came to the front of the
prayer rotation. Knowing Turner’s beliefs on the matter, the Mayor
asked Turner if he planned to close his prayer in the name of Jesus
Christ, in violation of the newly adopted policy; Turner said that he
would. The Mayor refused to recognize Turner and called on another
Council member to deliver the opening prayer instead.
Turner filed this suit, claiming that the Council’s prayer policy was
an unconstitutional establishment of religion, and that it violated his
Free Exercise and Free Speech rights. The district court granted summary
judgment to the Council, and this appeal followed.
KLINGENSCHMITT COMMENT: EVERYBODY ADMITS THE FACTS, THAT TURNER WAS PUNISHED WITH EXCLUSION FROM EQUAL OPPORTUNITY SOLELY BECAUSE OF THE CONTENT OF HIS CHRISTIAN PRAYERS.
II.
As a preliminary matter, we must decide whether the legislative
prayer at issue here is speech that must be attributed to the government,
or whether the Call to Order prayers were given in a personal
capacity.
The Fourth Circuit has adopted a four-factor test for determining
when speech can be attributed to the government. In order to determine
whether the speech in question is government or private speech,
we consider:
(1) the central "purpose" of the program in which the speech
in question occurs; (2) the degree of "editorial control" exercised
by the government or private entities over the content
of the speech; (3) the identity of the "literal speaker"; and
(4) whether the government or the private entity bears the
"ultimate responsibility" for the content of the speech.
Sons of Confederate Veterans, Inc. v. Comm’r of Dep’t of Motor
Vehicles, 288 F.3d 610, 618 (2002), citing Wells v. City & County of
Denver, 257 F.3d 1132, 1141 (10th Cir. 2001). Applying these factors,
we conclude that the legislative prayer at issue here is governmental
speech.
KLINGENSCHMITT COMMENT: THE GOVERNMENT CANNOT PRAY, UNLESS IT CHOOSES A GOVERNMENT GOD. ONLY INDIVIDUAL CITIZENS CAN PRAY. THUS TURNERS PRAYERS WERE ALWAYS OFFERED AS A PRIVATE CITIZEN. BY RULING THAT PRAYER IS “GOVERNMENT SPEECH” O’CONNOR HAS ESTABLISHED A GOVERNMENT-FAVORED VERSION OF GOD. (A FALSE GOD, A NEUTERED NON-SECTARIAN GOD, AN IDOL TO WHICH WE MUST ALL BOW, OR FACE PUNISHMENT OF EXCLUSION AND DENIAL OF EQUAL OPPORTUNITY.)
First, the purpose of the program suggests that the speech is governmental
in nature. The prayer is an official part of every Council
meeting. It is listed on the agenda, and is delivered as part of the
opening, along with the Pledge of Allegiance. The person giving the
prayer is called on by the Mayor. The prayers typically ask that Council
members be granted wisdom and guidance as they deliberate and
decide how best to govern the city. We conclude that the central purpose
of the Council meeting is to conduct the business of the government,
and the opening prayer is clearly serving a government purpose.
KLINGENSCHMITT COMMENT: PRAYER DOES HAVE A GOVERNMENTAL PURPOSE, BUT ONLY SO FAR AS IT CELEBRATES THE RIGHTS OF PRIVATE CITIZENS TO PRAY. THE GOVERNMENT CANNOT PRAY.
As to the second and third factors, the Council itself exercises substantial
editorial control over the speech in question, as it has prohibited
the giving of a sectarian prayer. While Turner is the literal
speaker, he is allowed to speak only by virtue of his role as a Council
member. Council members are the only ones allowed to give the Call
to Order.
KLINGENSCHMITT COMMENT: BUT THIS CALL TO ORDER CAN CERTAINLY BE DELEGATED TO PRIVATE CITIZENS WHO MAY ROUTINELY BE CALLED UPON TO TAKE TURNS, PRAYING EACH ACCORDING TO HIS OR HER OWN FAITH.
The only factor about which there is any question is whether the
government or the Council member who delivers the prayer bears the
ultimate responsibility for its content.
In the prayers Turner offered before the current prayer policy was
adopted, he prayed, "As we are about the business of this locality, we
ask Lord God, that you will cleanse our hearts and our minds that we
make the right decisions that’s best suited for this locality." JA 489.
KLINGENSCHMITT COMMENT: APPARENTLY EVEN THIS PRAYER IS NOT SUFFICIENTLY “NON-SECTARIAN” FOR O’CONNOR’S UNUSUAL TASTES.
It is true that Turner and the other Council members take some personal
responsibility for their Call to Order prayers. But given the
focus of the prayers on government business at the opening of the
Council’s meetings, we agree with the District Court that the prayers
at issue are government speech.
KLINGENSCHMITT COMMENT: PRAYERS ARE NEVER GOVERNMENT SPEECH. GOVERNMENTS CANNOT CHOOSE WHICH GOD, WHILE REMAINING IMPARTIAL. ONLY CITIZENS CAN CHOOSE WHICH GOD.
Turner has not cited a single case in which a legislative prayer was
treated as individual or private speech. Indeed, the Fourth Circuit has
determined that more difficult cases than this one should be classified
as government speech. For instance, in Simpson v. Chesterfield
County Board of Supervisors, 404 F.3d 276 (4th Cir. 2005), the Board
of Supervisors invited religious leaders from congregations throughout
Chesterfield County to give prayers on a rotating basis. Id. at 279.
The identity of the speaker, and the responsibility for the speech, was,
in that case, less clearly attributable to the government than the
speech here, because the speakers there were not government officials.
Simpson nonetheless held that "the speech . . . was government
speech." Id. at 288.
KLINGENSCHMITT COMMENT: THIS IS CRAZY. NOW O’CONNOR BELIEVES THAT EVEN VISITING PASTORS ARE SPEAKING AS GOVERNMENT ACTORS, WHEN THEY ARE CLEARLY INVITED TO REPRESENT DIVERSE FAITHS, NOT THE GOVERNMENT’S FAVORITE RELIGION, AS O’CONNOR WRONGLY SUPPOSES THAT SIMPSON RULED. THIS CANNOT BE TRUE, OR EVERY PRIVATE PETITION OFFERED IN A GOVERNEMENT FORUM WOULD QUALIFY AS GOVERNMENT INITIATED SPEECH, WHICH IS OXYMORONIC.
III.
Turner claims that, under the Establishment Clause, the government
may not dictate the content of official prayers. He points to Lee
v. Weisman, 505 U.S. 577 (1992), which held that a school principal,
who directed a rabbi to deliver a nonsectarian prayer, violated the
Establishment Clause. The Court explained that "[i]t is a cornerstone
principle of our Establishment Clause jurisprudence that ‘it is no part
of the business of government to compose official prayers for any
group of the American people to recite as a part of a religious program
carried on by government.’" Id. at 588 (quoting Engel v. Vitale,
370 U.S. 421, 425 (1962)). Thus, Turner says, the government cannot
require that nonsectarian prayers be given.
KLINGENSCHMITT COMMENT: O’CONNOR SKIPPED THE MOST IMPORTANT DICTA WITHIN THE LEE RULING: “Principal Lee provided Rabbi Gutterman with a copy of the ‘Guidelines for Civic Occasions’ and advised him that his prayers should be nonsectarian. Through these means, the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State's displeasure inthis regard.”
Turner’s argument misses the mark. As the Lee Court went on to
explain, the school’s direction to deliver a nonsectarian prayer was a
"good-faith attempt to ensure that the sectarianism which is so often
the flashpoint for religious animosity [was] removed from the graduation
ceremony." Id. But the Establishment Clause question that was
raised was not whether the school had made a good-faith attempt to
accommodate other religions; instead, the question was "the legitimacy
of its undertaking that enterprise at all when the object is to produce
a prayer to be used in a formal religious exercise which students,
for all practical purposes, are obliged to attend." Id. at 589. We do not
read Lee as holding that a government cannot require legislative
prayers to be nonsectarian. Instead, Lee established that government
cannot compel students to participate in a religious exercise as part of
a school program.
KLINGENSCHMITT COMMENT: O’CONNOR HAD TO DISTINGUISH FROM LEE, AND DISAGREE WITH THE SUPREME COURT’S DICTA, TO ENFORCE HER OPINION. BUT LEE CLEARLY HELD THAT A GOVERNMENT CANNOT REQUIRE ANY PRAYERS TO BE NON-SECTARIAN.
The Supreme Court of the United States has treated legislative
prayer differently from prayer at school events: "[T]here can be no
doubt that the practice of opening legislative sessions with prayer has
become part of the fabric of our society. To invoke Divine guidance
on a public body entrusted with making the laws is not, in these circumstances,
an ‘establishment’ of religion or a step toward establishment.’"
KLINGENSCHMITT COMMENT: OF COURSE INVITING CITIZENS TO PRAY DIVERSELY DOES NOT ESTABLISH A GOVERNMENT RELIGION. BUT STRICTLY REGULATING THEIR SPEECH AND RELIGIOUS CONTENT DOES.
Marsh v. Chambers, 463 U.S. 783, 792 (1983). Opening
prayers need not serve a proselytizing function, and often are an "acknowledgement
of beliefs widely held among the people of this country."
Id. So long as the prayer is not used to advance a particular
religion or to disparage another faith or belief, courts ought not to
"parse the content of a particular prayer." Id. at 795; see also Wynne
v. Town of Great Falls, 376 F.3d 292, 298 (4th Cir. 2004).
We need not decide whether the Establishment Clause compelled
the Council to adopt their legislative prayer policy, because the Establishment
Clause does not absolutely dictate the form of legislative
prayer.
KLINGENSCHMITT COMMENT: AT LEAST SHE RECOGNIZES THE FREEDOM FOR OTHER COUNCILS (LIKE TULSA OKLAHOMA CITY COUNCIL) WHOSE POLICY SPECIFICALLY ALLOWS DIVERSITY OF RELIGIOUS VIEWS. CLEARLY SOME COUNCILS MAY ALLOW PRAYERS IN JESUS NAME, WHILE FREDERICKSBURG DOES NOT. SEE THE BETTER TULSA POLICY HERE:
In Marsh, the legislature employed a single chaplain and
printed the prayers he offered in prayerbooks at public expense. By
contrast, the legislature in Simpson allowed a diverse group of church
leaders from around the community to give prayers at open meetings.
Simpson, 404 F.3d at 279. Both varieties of legislative prayer were
found constitutional. The prayers in both cases shared a common
characteristic: they recognized the rich religious heritage of our country
in a fashion that was designed to include members of the community,
rather than to proselytize.
KLINGENSCHMITT COMMENT: NOW THREE VARIETIES OF LEGISLATIVE PRAYER ARE FOUND CONSTITUTIONAL, 1) GOVERNMENT-PAID CHAPLAIN, 2) DIVERSITY OF VIEWS (I.E. TULSA), AND 3) NON-SECTARIAN MANDATED (I.E. FREDERICKSBURG). AT LEAST PRAYER IS SAFE. BUT #3 MANDATING RELIGIOUS SPEECH CONTENT SHOULD NEVER BE ALLOWED.
The Council’s decision to provide only nonsectarian legislative
prayers places it squarely within the range of conduct permitted by
Marsh and Simpson. The restriction that prayers be nonsectarian in
nature is designed to make the prayers accessible to people who come
from a variety of backgrounds, not to exclude or disparage a particular
faith.
KLINGENSCHMITT COMMENT: THEN WHY IS TURNER’S CHRISTIAN FAITH BEING EXCLUDED FROM PARTICIPATION? THE COURT’S WORDS ARE SELF-CONTRADICTORY. DESIGNED TO INCLUDE EVERYBODY “EXCEPT CHRISTIANS” IS NOT VERY INCLUSIVE AT ALL.
The Council’s decision to open its legislative meetings with
nondenominational prayers does not violate the Establishment Clause.
KLINGENSCHMITT COMMENT: IS NON-DENOMINATIONAL DIFFERENT THAN NON-SECTARIAN? O’CONNOR USES TERMS INTERCHANGABLY. EITHER WAY, SHE IS REGULATING THE CONTENT OF THE SPEECH, AND THE CONTENT OF THE RELIGIOUS BELIEF. THAT’S WRONG, AND SHOULD BE OVERTURNED BY THE U.S. SUPREME COURT.
IV.
Appellant also argues that the prayer policy violates his Free Exercise
and First Amendment rights. As Simpson explained:
[T]his issue turns on the characterization of the invocation
as government speech. . . . The invocation is not intended
for the exchange of views or other public discourse. Nor is
it intended for the exercise of one’s religion. . . . The context,
and to a degree, the content of the invocation segment
is governed by established guidelines by which the [government]
may regulate the content of what is not expressed.
Simpson, 404 F.3d at 288 (internal citations omitted) (second omission
in original); see also Rosenberger v. Rectors and Visitors of University
of Virginia, 515 U.S. 819, 833 (1995) ("[W]e have permitted
the government to regulate the content of what is or is not expressed
when it is the speaker.").
KLINGENSCHMITT COMMENT: AGAIN, GOVERNMENTS CANNOT CHOOSE A FAVORITE RELIGION, AS O’CONNOR PERMITS.
Turner was not forced to offer a prayer that violated his deeply-
held religious beliefs.
KLINGENSCHMITT COMMENT: ACTUALLY, HE WAS DIRECTLY FORCED TO CONFORM, OR FACE THE PUNISHMENT OF EXCLUSION.
Instead, he was given the chance to pray onbehalf of the government.
KLINGENSCHMITT COMMENT: ACTUALLY HE WAS DENIED THE CHANCE TO PRAY ON BEHALF OF THE GOVERNMENT.
Turner was unwilling to do so in the manner
that the government had proscribed, but remains free to pray on
his own behalf, in nongovernmental endeavors, in the manner dictated
by his conscience.
KLINGENSCHMITT COMMENT: THE WORD ‘JESUS’ IS NOW ILLEGAL RELIGIOUS SPEECH, BANNED BY O’CONNOR’S TWISTED READING OF THE FIRST AMENDMENT. ‘GOD’ IS PERMITTED, BUT ‘JESUS’ IS BANNED. THAT’S NOT FREEDOM. YOU MUST ‘LEAVE JESUS OUTSIDE’ IF YOU WANT TO SPEAK IN A GOVERNMENT FORUM. O’CONNOR IS WRONG, AND SO IS THE CITY OF FREDERICKSBURG.